Judgment rendered March 4, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,233-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
JOSEPH DAVIS Plaintiff-Appellant
versus
CHRISTIE WHEELER AND Defendants-Appellees STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2014-1448
Honorable Alvin R. Sharp, Judge
THE HAYES LAW FIRM, PLC Counsel for Appellant By: DaShawn P. Hayes
DAVENPORT, FILES & KELLY, L.L.P. Counsel for Appellees By: Carey B. Underwood
Before WILLIAMS, PITMAN, and THOMPSON, JJ. PITMAN, J.
Plaintiff-Appellant Joseph Davis appeals the trial court’s judgments in
favor of Defendants-Appellees Christie Wheeler and State Farm Mutual
Automobile Insurance Company (“State Farm”). For the following reasons,
we affirm.
FACTS
On May 15, 2014, Davis filed a petition for damages against Wheeler
and her insurer State Farm. He alleged that on May 16, 2013, he was
operating a 2008 Ford truck owned by his employer and was stopped at a red
light when a 2008 Toyota Prius owned and driven by Wheeler rear-ended his
truck with “tremendous force.” He contended that Wheeler caused the
collision and caused severe injuries, expenses and damages to him.
On June 2, 2014, Defendants filed an answer. They admitted that a
“very minor” traffic collision occurred on May 16, 2013, and that the
collision was caused by the fault of Wheeler. They denied the remaining
allegations, including that Davis was injured in the collision. On June 24,
2014, they filed a stipulation admitting that Wheeler was at fault for the
collision, but noted that they were in no way admitting causation of any
bodily injury to Davis.
On August 10, 2015, Davis filed a motion in limine seeking to
prohibit evidence of prior accidents and of force of impact. He also filed a
motion to strike Richard Baratta, Ph.D., as a witness for the defense
regarding force-of-impact evidence. He contended that Dr. Baratta was not
qualified to provide expert opinions regarding medical causation because he
was not a medical doctor, but, instead, had a Ph.D. in engineering. On September 2, 2015, Defendants filed an opposition to Davis’s
motion in limine. They argued that evidence of prior accidents is admissible
in a personal injury case. They contended that evidence of force of impact is
relevant in cases regarding disputed injuries. They also filed an opposition
to Davis’s motion to strike. They contended that the sole issue in this case
was whether the “small bump” of the collision caused any injury to Davis
and that they hired Dr. Baratta to rebut the testimony of Davis’s expert.
A hearing on the motion in limine and motion to strike was held on
September 8, 2015; and, on September 28, 2015, the trial court filed a
judgment. It granted the motion in limine to prohibit any reference to two
prior accidents of August 2012 and January 2013. It granted the motion to
strike to the limited extent that Dr. Baratta was ordered not to testify as to
any issues relating to the medical causation of Davis’s injuries.
On October 5, 2015, Defendants filed a notice of intent to apply for
supervisory writs for review of the trial court’s judgment on the motion in
limine and the motion to strike. On January 28, 2016, this court denied the
writ as to the motion in limine regarding prior-accident evidence. Noting
that force-of-impact testimony is a relevant factor in low-impact collision
cases, this court granted the writ as to the motion to strike and remanded the
matter to the trial court for a hearing to determine which portions of
Dr. Baratta’s opinions and conclusions were admissible.
On October 10, 2017, Davis filed a motion in limine, requesting that
the court exclude testimony and evidence concerning liability of the
collision, including, but not limited to, testimony and evidence concerning
force of impact. Defendants filed an opposition to this motion.
2 On October 11, 2017, a Daubert hearing was held at which
Dr. Baratta testified. On October 18, 2017, the trial court filed a judgment
that Dr. Baratta was qualified to render opinions in the field of biomechanics
and accident reconstruction. It stated that Dr. Baratta was not allowed to
give any opinions or testimony regarding medical causation.
On January 10, 2018, State Farm filed a motion for rehearing on the
prior ruling on the motion in limine concerning prior-accident evidence. On
January 30, 2018, Davis filed an opposition to State Farm’s motion and
argued that this issue was barred by res judicata and the law of the case.
On February 5, 2018, a hearing was held on the motions in limine.1
On February 20, 2018, the trial court filed a judgment. It denied Davis’s
motion in limine regarding force-of-impact evidence. It granted in part and
denied in part State Farm’s motion for rehearing and stated that Defendants
would be allowed to present evidence of Davis’s January 2013 automobile
accident but not of his 2012 automobile accident.
Jury selection began on March 19, 2018, and the jury trial began on
March 21, 2018.2
Dr. Arnold Harris, a chiropractor, testified that he treated Davis for his
complaints of neck pain that radiated to the right upper extremity,
headaches, mid-back pain and lower-back pain that radiated to the left and
right lower extremities. Davis told him that the onset of his injuries was a
1 On February 12, 2018, Davis filed a notice of intent to apply for a supervisory writ to review the trial court’s February 5, 2018 judgment regarding the motions in limine. On March 14, 2018, this court did not consider the writ because the application lacked documentation of the ruling for which he sought review. 2 On March 23, 2018, Defendants filed a peremptory exception of no cause and/or right of action. They moved that the action against Wheeler be dismissed because she was deceased. They stated that the proper party is the succession representative. 3 May 16, 2013 automobile collision. He first saw Davis on May 20, 2013.
His initial diagnosis of Davis was cervical sprain/strain, cervical radiculitis,
headaches, lumbar sprain/strain, lumbar radiculitis, stiffness, restricted
ranges of motion in the lumbar spine, thoracic sprain/strain and deep spasms
throughout the spine. He suggested a treatment plan of chiropractic
manipulation and scheduled two visits per week with Davis for the next 12
to 16 weeks. On subsequent visits, Davis stated that he was still in pain. On
September 6, 2013, he referred Davis for an MRI of the cervical and lumbar
spine. He reviewed the MRI results with Davis, which showed some disc
pathology and foraminal stenosis, and referred him to Dr. Kenneth Vogel, a
neurosurgeon. He testified that it was his professional opinion that it is more
likely than not that the injury sustained by Davis was caused by the May 16,
2013 collision.
In a video deposition, Dr. Vogel testified that he first evaluated Davis
on September 20, 2013, for cervical and bilateral arm pain and lumbosacral
and bilateral leg pain. He noted that Davis reported having been in good
health until the May 16, 2013 collision when he “was thrown about and
dazed momentarily and noted immediate cervical and lumbar pain.” Davis
denied prior injuries, but did note another automobile accident in 2012 or
2013. He detailed his evaluation of Davis, found abnormalities in his neck
and lower back and diagnosed him with a Grade 1 concussion. He testified
that “in all medical probability, the signs and symptoms are causally related”
to the May 16, 2013 collision. On November 11, 2013, Davis had a lumbar
discogram CAT scan, which showed that a disc herniation at L4-L5 was
causing his lower-back pain. Dr. Vogel then performed a microsurgical
discectomy, a laminectomy and a lumbar epidural block on Davis. Six 4 weeks after surgery, Davis still complained of lower-back pain, so he
ordered physical therapy. He opined that a traumatic event, such as a rear-
end collision, could cause a disc to herniate.
Dr. Vincent Forte, who is board-certified in anesthesiology and pain
medicine, testified that Davis first presented to him on July 24, 2014, with
the chief complaint of lower back pain. Following a physical examination,
he opined that Davis possibly had post-laminectomy syndrome, i.e., lower-
back pain following his lumbar surgery. Based on MRIs taken before and
after Davis’s November 2013 surgery, he recommended a diagnostic nerve
block and performed two procedures on Davis in August 2014. In October
2014, Davis stated that he was pleased with the nerve block injections, but
that he continued to have lumbar pain. When Davis’s attorney asked
Dr. Forte if the May 16, 2013 collision caused Davis’s pain and injury,
Dr. Forte responded that based on Davis’s medical history from Dr. Vogel
and the history that Davis provided to him, the pain symptoms did not start
until after the accident. On cross-examination, Dr. Forte stated that without
relying on Dr. Vogel, he could not say that it was more likely than not that
his treatment of Davis was caused by the May 16, 2013 collision.
Davis testified that at the time of the collision, he worked for O’Reilly
Auto Parts delivering parts between stores. He stated that on May 16, 2013,
he was in his company truck and stopped at a traffic light when he heard a
loud bang and temporarily blacked out. When he came to, he discovered
that his truck had been rear-ended by Wheeler. He stated that he
immediately felt pain in his neck, lower back and lower extremities and
described the pain in his lower back as “extreme.” He finished the work day
and worked through the pain. Noting that he did not have health coverage, 5 he stated that the day after the collision, he called an attorney, who
recommended that he see Dr. Harris. After several months of treatment with
Dr. Harris, his pain was not relieved and was aggravated by physical
movement. He then met with Dr. Vogel and had surgery. He stated that he
still felt sharp pains eight months after surgery and was not able to return to
work until over a year after surgery. He described the negative effects that
the surgery and pain medicine had on his life. He underwent six weeks of
physical therapy and then went to Dr. Forte for pain management. The
injections he received from Dr. Forte provided him with relief for a short
period of time. He stated that at the time of trial he still had pain from time
to time.
Davis further testified that in January 2013, he was involved in a one-
car accident when he hit a concrete block at a carwash. He stated that his
neck and lower back bothered him for a few days after the accident, but he
never saw a doctor or made an insurance claim for any injuries sustained.
He did not recall telling Dr. Harris, Dr. Vogel or Dr. Forte about the
January 2013 accident.
Davis rested his case in chief, and the defense presented its witnesses.
In Wheeler’s deposition, she testified that on May 16, 2013, she was
stopped at a red traffic light in her Toyota Prius behind Davis’s truck. She
was looking down when she saw the car next to her move forward, so she
began to move her car forward at a speed of no more than “one or two miles
an hour.” Her car then rear-ended Davis’s truck. She put her car in park,
got out of her car and walked to Davis’s door to ask if he was okay. He
responded that he was okay, but was “just a little shook up.” She then called
the police department, and she and Davis moved their automobiles to a 6 parking lot. Wheeler stated that her Prius did not sustain any damage in the
collision. She noted that the bumper of Davis’s truck was pushed down
prior to the impact of the collision.
David Vandergracht, an independent automobile appraiser, testified
that on December 18, 2012, he inspected a Ford Ranger truck at O’Reilly
Auto Parts. He noted that the bumper of this truck was pushed downward
toward the ground. The license plate number and the vehicle identification
number of the truck inspected by Vandergracht matched that of the truck
involved in the May 16, 2013 collision.
Dr. Baratta, an expert in the field of biomechanical engineering and
accident reconstruction, testified that he reviewed the May 16, 2013
collision, which included an inspection of Wheeler’s Prius. The only
damage he noted on the Prius’s bumper was a small, thin horizontal line in
the paint. He noted that there was no damage to the Prius’s Styrofoam front
bumper absorber, meaning that there was not sufficient contact force to
deform it. He stated that the contact force would not have been sufficient to
break the friction between Davis’s truck’s tires and the ground, i.e., that the
body of the truck would rock forward and back, but the wheels would not
move. When asked by defense counsel if any occupant in Davis’s truck
should have been injured as a result of the “bump” of the collision, Dr.
Baratta responded, “You would not expect that a person that undergoes
those dynamics would have any injuries.” He stated that he had no opinion
as to whether Davis sustained an injury in the collision.
The defense rested, and Davis presented his rebuttal. Dr. David J.
Barczyk, an expert in chiropractic care and crash biomechanics, testified that
he conducted a biomechanical evaluation of Davis, which included 7 reviewing his medical history. He also considered the energy transfer
between the automobiles involved in the May 16, 2013 collision and the
condition of the automobiles after the collision. Dr. Barczyk stated that it
was his opinion that Davis was injured in the collision.
On March 23, 2018, the jury found that Davis had not proved by a
preponderance of the evidence that he sustained injuries that were caused by
the collision of May 16, 2013. On April 3, 2018, the trial court signed a
judgment in favor of Wheeler and State Farm, dismissing all of Davis’s
claims with prejudice.
On April 27, 2018, Davis filed a motion for new trial. He argued that
the verdict was contrary to the law and evidence and explained that it was
illogical for the jury to find that his injuries were not caused by the collision
as there was sufficient medical evidence to prove the same. He contended
that to receive no compensation for his injuries was infuriating and to
suggest that he suffered no pain, hardship or inconvenience was egregious.
On June 26, 2018, State Farm filed an opposition to the motion for
new trial and argued that the jury’s verdict was well grounded on facts and
the law.
On July 30, 2018, a hearing was held on the motion for new trial. On
August 27, 2018, the trial court filed a ruling denying the motion. It noted
that no peremptory grounds existed for the granting of a new trial and that
no basis existed for exercising its discretion to grant a new trial.
Davis appeals the trial court’s April 3 and August 27, 2018
judgments.
8 DISCUSSION
Motion for Rehearing
In his first assignment of error, Davis argues that the trial court
erroneously granted Defendants’ motion for rehearing on the prior ruling on
the motion in limine concerning prior-accident evidence when this court
denied a writ on the matter and Defendants failed to raise any new issues for
consideration by the trial court. In the alternative, Davis maintains that the
evidence of his prior accidents was prejudicial and irrelevant.
State Farm argues that the trial court properly reconsidered the prior
ruling and allowed the admission of evidence concerning Davis’s accident
that occurred four months prior to the collision at issue. It contends that the
prior ruling on the motion in limine was an interlocutory judgment that
could be reconsidered or revised by the trial court prior to trial.
A judgment that does not determine the merits but only preliminary
matters in the course of the action is an interlocutory judgment. La. C.C.P.
art. 1841. A motion in limine presents an evidentiary matter that is subject
to the great discretion of the trial court. Heller v. Nobel Ins. Grp., 00-0261
(La. 2/2/00), 753 So. 2d 841; Taylor v. Dowling Gosslee & Assocs., Inc.,
44,654 (La. App. 2 Cir. 10/7/09), 22 So. 3d 246, writ denied, 09-2420 (La.
2/5/10), 27 So. 3d 299. It is well-settled that prior to final judgment, a trial
court may change the result of interlocutory rulings it finds to be erroneous.
VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La. 11/28/01), 801 So. 2d 331.
Except as otherwise provided by law, all relevant evidence is
admissible. La. C.E. art. 402. “Relevant evidence” means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be 9 without the evidence. La. C.E. art. 401. Although relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues or misleading the jury, or by
considerations of undue delay or waste of time. La. C.E. art. 403. Evidence
of prior injury and claims is admissible insofar as it bears on any issue
before the court. Pratt v. Culpepper, 49,627 (La. App. 2 Cir. 2/27/15),
162 So. 3d 616. The trial court has great discretion in determining the
relevancy and probative value of evidence and in striking the balance
between relevancy and prejudicial effect, and its determinations will not be
overturned absent a finding of a clear abuse of discretion. Williams v. Bd. of
Sup’rs of Univ. of La. Sys., 48,763 (La. App. 2 Cir. 2/26/14), 135 So. 3d 804,
writ denied, 14-0666 (La. 5/2/14), 138 So. 3d 1249.
In this case, the trial court’s first ruling on the motion in limine was an
interlocutory judgment. When this court denied supervisory writs on the
issue of prior-accident evidence, the judgment remained an interlocutory
judgment that could be reconsidered rather than became a final judgment
that could not be modified. See Tolis v. Bd. of Sup’rs of La. State Univ.,
95-1529 (La. 10/16/95), 660 So. 2d 1206. Therefore, the trial court had the
authority to reconsider the judgment.3
Davis placed his history of prior injuries and accidents at issue by
claiming personal injury damages. The trial court weighed the probative
value of the prior-accident evidence against the danger of its prejudicial
effect in conformity with La. C.E. art. 403. Noting the proximity of Davis’s
3 We note that in the motion for rehearing, State Farm incorrectly stated that this court “refused to hear the issue” of prior-accident evidence when, in fact, this court denied the writ regarding prior-accident evidence “on the showing made.” 10 prior accidents to the May 2013 collision, it determined that only the January
2013 accident was admissible. Therefore, the trial court did not abuse its
discretion when it determined that the evidence of Davis’s prior accident in
January 2013 was relevant and admissible pursuant to La. C.E. art. 403.
Accordingly, this assignment of error lacks merit.
Jury’s Verdict
In his second assignment of error, Davis argues that the jury
erroneously rendered a verdict that he did not prove by a preponderance of
evidence that he sustained injuries that were caused by the collision. He
contends that all of his treating physicians causally related his injuries to the
collision, that he presented expert testimony of an engineer who opined that
his injuries occurred from the collision and that Defendants did not present
any medical evidence or testimony to controvert the findings of his treating
physicians. He states that he proved by a preponderance of the evidence that
his injuries were caused by the collision and that it is inconceivable,
illogical, irrational and egregious for the jury to find otherwise when there
was sufficient medical evidence to prove causation.
State Farm argues that the jury properly considered the testimony and
credibility of the witnesses and evidence and acted appropriately in rejecting
the testimony of the healthcare providers and Dr. Barczyk.
In a personal injury lawsuit, the plaintiff has the burden of proving by
a preponderance of the evidence a causal connection between the accident
and injuries. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.
2/20/95), 650 So. 2d 757; Swayze v. State Farm Mut. Auto. Ins. Co., 49,079
(La. App. 2 Cir. 10/21/15), 184 So. 3d 81. The plaintiff satisfies this burden
by proving through medical and lay testimony that it was more probable 11 than not that the injury was caused by the accident. Maranto v. Goodyear
Tire & Rubber Co., supra; Swayze v. State Farm Mut. Auto. Ins. Co., supra.
The plaintiff is aided in his burden of proving causation by the presumption
described in Housley v. Cerise, 579 So. 2d 973 (La. 1991), in which the
Louisiana Supreme Court stated:
[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.
Id., quoting Lucas v. Ins. Co. of N. Am., 342 So. 2d 591 (La. 1977).
Whether an accident caused a person’s injuries is a question of fact,
and an appellate court may not set aside a finding of fact made by a judge or
jury in the absence of manifest error or unless it is clearly wrong. Rosell v.
ESCO, 549 So. 2d 840 (La. 1989); Mulreany v. Williams, 41,569 (La. App.
2 Cir. 12/13/06), 945 So. 2d 291.
When the findings by the trier of fact are based on credibility, respect
must be given to the fact finder’s determination, for only the fact finder can
be aware of the variations in demeanor and tone of voice that bear so heavily
on understanding and believing what is said. Meneweather v. Shelter Ins.
Co., 43,109 (La. App. 2 Cir. 3/19/08), 978 So. 2d 1243.
In the case sub judice, Davis had the burden of proving by a
preponderance of the evidence a causal connection between the May 16,
2013 collision and his injuries. Davis does not benefit from the Housley
presumption because he did not show (1) that he was in good health prior to
the accident at issue; (2) that subsequent to the accident, symptoms of the
alleged injury appeared and continuously manifested themselves afterward; 12 and (3) through evidence, either medical, circumstantial or common
knowledge, a reasonable possibility of causation between the accident and
the claimed injury. Byrnside v. Hutto, 47,685 (La. App. 2 Cir. 2/27/13),
110 So. 3d 603. As the burden of proof was on Davis, Defendants did not
have to present any evidence to controvert his witnesses and evidence.
The jury had the ability to accept or reject the testimony of Davis and
his experts, and it clearly rejected Davis’s theory of causation and the
medical history he provided to his experts. Respect must be given to the
jury’s credibility determinations. Further, the jury was not manifestly
erroneous or clearly wrong in its rejection of Davis’s theory of causation.
Motion for New Trial
In his third assignment of error, Davis argues that the trial court
erroneously denied his motion for new trial. He states that the jury failed to
award any damages even though a plethora of medical evidence and
testimony was presented to illustrate that it was more probable than not that
his injuries were caused by the subject collision.
State Farm argues that the trial court did not abuse its discretion in
denying Davis’s motion for new trial. It contends that the jury’s verdict was
not clearly contrary to the law and evidence, did not result in a miscarriage
of justice and was supported by a fair interpretation of the evidence.
La. C.C.P. art. 1972 sets forth the peremptory grounds for granting a
motion for new trial and states:
A new trial shall be granted, upon contradictory motion of any party, in the following cases: (1) When the verdict or judgment appears clearly contrary to the law and the evidence.
13 (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial. (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.
La. C.C.P. art. 1973 sets forth the discretionary grounds for granting a
motion for new trial: “A new trial may be granted in any case if there is
good ground therefor, except as otherwise provided by law.” Although a
trial judge has much discretion in determining if a new trial is warranted, an
appellate court may set aside the ruling of the trial judge in a case of
manifest abuse of that discretion. Hickman v. Wm. Wrigley, Jr. Co., Inc.,
33,896 (La. App. 2 Cir. 10/4/00), 768 So. 2d 812.
For the same reasons the jury did not err in its verdict, the trial court
did not err in denying the motion for new trial. The verdict was not clearly
contrary to the law and the evidence, and the trial court did not abuse its
discretion when determining that a discretionary ground was not present to
warrant a new trial.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgments in
favor of Defendants-Appellees Christie Wheeler and State Farm Mutual
Automobile Insurance Company and against Plaintiff-Appellant Joseph
Davis. Costs of appeal are assessed to Plaintiff-Appellant Joseph Davis.
AFFIRMED.